Citation Nr: 9805659
Decision Date: 02/25/98 Archive Date: 03/20/98
DOCKET NO. 93-08 633 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Whether new and material evidence has been submitted to
reopen the claim for service connection for a
gastrointestinal disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C.A. Skow, Associate Counsel
INTRODUCTION
The appellant served on active duty from September 1942 to
December 1945.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a November 1991 rating decision of the
Philadelphia, Pennsylvania, Department of Veterans Affairs
Regional Office (VARO).
CONTENTION OF APPELLANT ON APPEAL
The appellant contends that he has submitted new and material
evidence sufficient to reopen and establish the claim for
service connection for a gastrointestinal disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence
sufficient to reopen the claim for service connection for a
gastrointestinal disorder has not been presented.
FINDINGS OF FACT
1. Service connection for a gastrointestinal disorder was
denied by VARO in August 1966. No appeal was filed and that
decision became final.
2. The evidentiary submissions since VARO’s August 1966
rating decision are duplicative of evidence previously
considered, and they do not tend to establish the presence of
a gastrointestinal disorder related to service, or that a
preexisting gastrointestinal disorder was aggravated by
service.
CONCLUSION OF LAW
New and material evidence sufficient to reopen the claim to
service connection for a gastrointestinal disorder has not
been presented. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1997);
38 C.F.R. § 3.156(a) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant's claim for service connection for a
gastrointestinal disorder was denied by VARO in August 1966.
That decision is final. Under pertinent law and regulations,
as interpreted by the United States Court of Veterans'
Appeals (the Court), the Board may reopen and review a claim
which has been previously denied only if new and material
evidence is submitted by or on behalf of the appellant.
38 U.S.C.A. § 5108 (West 1991 & Supp. 1997); 38 C.F.R.
§ 3.156(a) (1997); Manio v. Derwinski, 1 Vet.App. 140 (1991).
The credibility of the new evidence is presumed. Justus v.
Principi, 3 Vet.App. 510, 513 (1992).
"New" evidence means evidence which is not merely cumulative
or redundant, or of record at the time of the last final
disallowance of the claim. Colvin v. Derwinski, 1 Vet.App.
171 (1991). "Material" evidence is evidence which is
relevant and probative of the issue at hand and which,
furthermore, leads to a reasonable possibility that the new
evidence, when viewed in context of all of the evidence of
record, would change the outcome of the case. Smith v.
Derwinski, 1 Vet.App. 178 (1991)
The Court has noted that the prior evidence of record is
vitally important in determining newness as well as the
reasonable possibility of a changed merits outcome for
purposes of deciding whether to reopen a claim. Glynn v.
Brown, 6 Vet.App. 523, 528-29 (1994), and Evans v. Brown, 9
Vet.App. 273 (1996).
A review of the record shows that, in its August 1966
decision, VARO considered service medical records and report
of VA examination dated July 1966. Service medical records
reflect that the appellant was hospitalized for neurasthenia
gastrica in October 1943. The cause was undetermined. The
medical records indicated that this condition exited prior to
induction. By history, this was his third episode since the
onset of stomach problems in 1940. A gastrointestinal series
was negative, but the colon showed bizarre haustrations. On
discharge examination, the appellant reported 2 prior in-
service hospitalizations for stomach trouble. Physical
examination was negative for a gastrointestinal disorder.
Report of VA examination dated July 1966 was positive for
complaints of moderate tenderness in the umbilical area,
absent abnormal clinical findings. The appellant reported
that his stomach symptoms were controlled by a bland diet and
he denied vomiting, hematemesis, and melena. He further
reported that his stomach pains were aggravated by
nervousness and excitement. The diagnosis was irritable
colon by history, absent any organic upper gastrointestinal
tract disorder.
Since VARO’s August 1966 decision, duplicate copies of
service medical records were submitted along with a report
from the Surgeon General’s Office (SGO) showing that the
appellant was hospitalized in February 1944 for observation,
but that no disease was found. Evidentiary submissions since
VARO’s August 1966 decision also include sworn testimony,
report of VA examination dated October 1995, and a VA medical
letter dated January 1996.
In February 1994, the appellant testified at a personal
hearing that he believes he has a gastrointestinal disorder
related to service. Report of VA examination dated October
1995 reflects a diagnosis of abdominal pain of unclear
etiology. The letter dated January 1996 from the Department
of Gastroenterology at the Philadelphia VA Medical Center
reflects an assessment for reflux esophagitis, motility
disorder of the esophagus, and thickened duodenum folds. The
examining physician stated as follows:
While there are rare, chronic infections
of the duodenum that potentially may have
been picked up during his service in
WWII, it is extremely unlikely for this
to be the case. For this reason, I must
conclude that the symptoms he is
currently experiencing are not related to
his service. I do not believe that doing
an endoscopy would change this decision,
but this is a moot [sic] point, given his
refusal to undergo the procedure.
In summary, I cannot find any evidence,
based on the studies carried out by our
institution and our examination, that
suggests a service related condition.
After reviewing these most recent evidentiary submissions,
the Board finds that the service medical records are not new
as they were previously considered on adjudication of the
original claim. Furthermore, the SGO report is not material
as it is neither relevant nor probative to the issue at hand.
We note that there is no indication in this report as to the
reason for the appellant’s hospitalization in February 1944
and that, in the end, no disease or disorder was found. With
respect to the report of VA examination dated October 1995
and the VA medical opinion dated January 1996, these
submissions are not probative because they do not tend
establish the existence of a gastrointestinal disorder
related to service, or that a preexisting gastrointestinal
disorder was aggravated by service.
Accordingly, in view of the above, the Board concludes that
new and material evidence sufficient to reopen the claim for
service connection for a gastrointestinal disorder has not
been presented.
ORDER
Having found that new and material evidence sufficient to
reopen the claim for service connection for a
gastrointestinal disorder has not been presented, the benefit
sought on appeal remains denied.
C.P. RUSSELL
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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